Sellner v. Neyer
| Decision Date | 04 April 1922 |
| Docket Number | No. 16779.,16779. |
| Citation | 240 S.W. 247 |
| Parties | SELLNER v. MEYER. |
| Court | Missouri Court of Appeals |
Appeal from. St. Louis Circuit Court; Victor H. Falkenhainer, Judge.
"Not to be officially published."
Replevin by W. A. Sellner against Herbert Meyer. Judgment for the plaintiff on appeal from the justice of the peace, and defendant appeals, Reversed.
Gordon Wheeling and Abbott, Fauntleroy, Cullen & Edwards, all of St. Louis, for appellant.
Cornelius F. Bauer, of St. Louis, for respondent.
This is an action of replevin to recover possession of a Ford automobile and damages for the taking and detention thereof. It was commenced before a justice of the peace, and appealed to the circuit court of the city of St. Louis.
The cause was tried by the court without a jury, and the trial resulted in a judgment for the plaintiff, from which the defendant appeals.
It appears from the evidence, preserved at the trial, that plaintiff was the owner of the automobile in question, and on March 11, 1918, sold it to one W. J. Anderson and gave him a bill of sale for it. Anderson gave him in payment for the car $25 in cash and a cashier's check or New York draft for $375, which draft was proved to be a forged and fraudulent instrument.
On March 29th the plaintiff discovered the automobile in the city of St. Louis in the possession of the defendant. Thereafter, on May 16, 1918, this suit was instituted.
The defendant, at the trial, contended that he had purchased the car for $375, without notice of the fraud, from a party who represented himself as Anderson's agent, and that he had paid him the purchase price. Defendant further contended that the car was not in his possession at the institution of the suit, but had been sold.
There was no evidence introduced tending to show that the plaintiff had rescinded the contract by a return or an offer to return the $25, which he had received in part payment for the car.
At the close of plaintiff's case the defendant offered a declaration of law, in the nature of a demurrer to the evidence, which the court refused.
At the threshold of this appeal we are confronted with the fact that the plaintiff has not rescinded the contract, and that therefore he has neither the title nor the right of possession to the automobile in question.
It is "hornbook" law that a party will not be permitted to rescind a contract so as to reclaim the thing he parted with in pursuance of the contract, and at the same time retain what he has received in the transaction, and that one who seeks cancellation of a contract must return or offer to return what he received under it.
When plaintiff sold the car, he obtained $25 and the balance of the purchase price in a fraudulent check. This sale was not void, but only voidable at plaintiff's election. He had the option to rescind the contract upon the discovery of the fraud or stand by it. To effect a rescission it was incumbent on him to return or offer to return the $25, part purchase price received....
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Jackson v. Farmers Union Livestock Com'n
... ... Whysler, ... 145 Mo.App. 148, 155; First Methodist Church of Poplar ... Bluffs v. Berryman, 261 S.W. 73; Sellner v ... Meyer, 240 S.W. 247; Ebel v. Roller, 21 S.W.2d ... 214; Schurtz v. Cushing, 146 S.W.2d 591, 594. (12) ... It was error to permit the ... by the instruction. Rishel v. K. C. Co., 129 S.W.2d ... 851; Jones v. St. Louis Ry., 333 Mo. 802, 63 S.W.2d ... 94; Mendenhall v. Neyer, 149 S.W.2d 366, 371. (7) ... Plaintiff's instructions properly submitted to the jury ... all the necessary elements to be found by them in ... ...
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Jackson v. Farmers Union Livestock Commission
...S.W. (2d) 708, 710; Sturgis v. Whysler, 145 Mo. App. 148, 155; First Methodist Church of Poplar Bluffs v. Berryman, 261 S.W. 73; Sellner v. Meyer, 240 S.W. 247; Ebel v. Roller, 21 S.W. (2d) 214; Schurtz v. Cushing, 146 S.W. (2d) 591, 594. (12) It was error to permit the introduction in evid......
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Schurtz v. Cushing
...matter." [Estes v. Reynolds, 75 Mo. 563, l. c. 565. See also Robinson v. Siple et al., 129 Mo. 208, l. c. 220, 31 S.W. 788; Sellner v. Meyer (Mo. App.), 240 S.W. 247; Ebel v. Roller et al. (Mo. App.), 21 S.W.2d 214, c. 216.] The judgment should be affirmed and it is so ordered. Hyde and Dal......
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